On September 23rd, the Alberta Court of Queen’s Bench denied a mid-trial application made by the CBC for access to an audiotape played in open court. Madam Justice Moen engaged in considerable analysis of the applicable jurisprudence and held:
- The open courts principle gives the public and the media a right to attend in open court and to report and publish widely what they heard and saw. Any limits on this right must be subject to the Dagenais/Mentuck test.
- The open courts principle does not, however, give the public and the media a right to receive copies of evidence. Dagenais/Mentuck does not apply.
- Mid-trial applications in criminal jury trials will generally work an unfairness on the parties and interfere with the trial process. Hence, they should only be entertained in “special circumstances.”
- The onus in applications for access to exhibits should be on the media, who should be required give notice to all persons that may be directly affected by the broadcast of the recording and show that “extraordinary circumstances” weigh in favor of access.
- In considering applications for access to exhibits, the Court should consider the property and privacy interests of third parties.
This decision comes shortly after the Court launched a new Audio Recording Policy, which allows accredited members of the media to record proceedings if they provide a signed undertaking to use the recording for verification purposes only.